Former Commonwealth Ombudsman Allan Asher

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This week we bring you an exclusive interview with Allan Asher, the Commonwealth Ombudsman who stepped down on Friday after only one year in the job.

Sunday Profile29th October 2011 Allan Asher

JULIA BAIRD: Hi I'm Julia Baird and welcome to Sunday Profile

This week we bring you an exclusive interview with Allan Asher, the Commonwealth Ombudsman who stepped down on Friday after only one year in the job.

Two weeks ago leaked emails revealed that he had drafted a series of questions for Greens Senator Sarah Hanson-Young to ask him at a Senate Estimates hearing.

The questions addressed the lack of funding for the Ombudsman's Office and concerns about the plight of asylum seekers in detention centres.

After the emails were made public the Government made it clear it had lost confidence in Allan Asher and under intense pressure he resigned.

The Greens say the Government "assassinated" Allan Asher because he was highly critical of its asylum seeker policies.

But did he overstep the mark and compromise the integrity and independence of the Commonwealth Ombudsman's Office?

Allan Asher admits he made an error of judgement but says he was just doing his job. So what really happened?

He spoke to SUNDAY PROFILE in his first interview since stepping down

ALLAN ASHER: My last 40 years in the workforce have been about campaigning for consumers, for better markets nationally and internationally, international development.

But a common theme through all of that is really to get a fairer deal for ordinary people. And I found in the Office of the Commonwealth Ombudsman a real hunger among many of the staff to make a difference - to make a difference in the way that government agencies do their work and relate to people. And across a whole range of things I thought there were all sorts of possibilities.

But even then, even from the first day it was clear that there were some just severe resource constraints that were going to make being effective a much harder thing. And sadly as time went by they became quite debilitating and led I think inexorably to this very sad conclusion.

JULIA BAIRD: Well let's talk particularly about what happened with your concerns with asylum seekers and how you came to be involved in what was happening in detention centres.

In your role as ombudsman you look after consumer complaints about government services and your office ended up going to Christmas Island nine times. You went there once. So what did you see there and why did you become so concerned?

ALLAN ASHER: Well the context is that as many people will remember in the last decade the immigration authorities were very cavalier in a number of very serious cases - the Rau and Alvarez case where in one case an Australian citizen was actually deported. And it was covered up and it took five years to sort out.

At that time there was a revolution. The government changed the law and gave the ombudsman much more responsibility and set up the ombudsman as the immigration ombudsman to be on top of these things, to inspect and follow up.

That was the job that I inherited but with a fundamental incapacity to do it.

If I could just illustrate, in the last year alone the number of complaints that we had from detainees went up by a third. And in addition to that we had the job of assessing individuals who were in immigration detention for more than six months. And that number over the last year has crept up to over 3,000.

But the resources we were given to do that were at a time when it was expected there were about 100. So in other words it was just impossible to do the very job that we were required to do.

And that was a source of great frustration to me as we'd get back report after report from Christmas Island all through last year of overcrowding, of threatened self harm and suicide, of poor treatment and all of those things.

And I guess that's what led me to my first major public report which is in February this year where I just pointed out that the situation on Christmas Island was totally untenable.

JULIA BAIRD: What had you seen there?

ALLAN ASHER: The very week that I was there there were 30 incidents of self harm.

We'd seen individuals who were not getting access to mental healthcare when they needed it. We found massive overcrowding.

We said in the February report that it was unsustainable and it was only sticking together by the goodwill of asylum seekers, the staff and also the non-government organisations.

Sadly within two months of that of course it flew apart.

JULIA BAIRD: So in July this year as you've said you've announced, you announced an inquiry into cases of self harm in detention centres. So what response did you have from the Government when you did so?

ALLAN ASHER: I found a great deal of resistance. By the time of our February report it was just clear to me that the Government and sadly the Minister just didn't want us involved.

The staff in the Minister's office saw our office as just another government department that they could direct and control.

JULIA BAIRD: Was that expressly communicated to you?

ALLAN ASHER: In many ways. The department started not giving us information when we asked for it. Perhaps the most pervasive way and the way that the control was exercised most powerfully is this absolute starvation of resources.

JULIA BAIRD: How many times did you actually seek communication with the Minister as well? Did you have one on one meetings very often?

ALLAN ASHER: One. I had one meeting with the Minister. And other meetings were put off. And staff met slightly more often with ministerial staff but even then quite often they just wouldn't be available to us.

JULIA BAIRD: If you only had one meeting then with Immigration Minister Chris Bowen what was your relationship with him like?

ALLAN ASHER: Formal but frosty I would say.

JULIA BAIRD: Why frosty?

ALLAN ASHER: Well because I think the approach that I took was to highlight quite clearly that the Government was in breach of its own immigration detention values. I think the Government just I hope had a bit of a sense of embarrassment about that.

JULIA BAIRD: And this is of course when you decided to contact Greens Senator Sarah Hanson-Young's office. So why did you approach her?

ALLAN ASHER: Well the Ombudsman's Office has this statutory independence. But we only have statutory independence. We don't have any financial independence and so we're tied very, very tightly to the government purse strings.

And the only way that an agency like mine can make its concerns known is through the Senate Budget Committees. But in recent years we just don't get a look in there.

Last year in October I was called but then sent away without being able to give any evidence. And then in May we weren't even on the list because you can only attend if you're called.

And by then I was getting I guess somewhat, somewhat desperate. And I noticed that Senator Hanson-Young who up until then I'd never spoken to I have to say, and I noticed that she was a member of this budget committee and that she had of course a special interest in immigration matters. So I contacted her and offered her a briefing on the concerns that we had.

JULIA BAIRD: Did you not think that there were any other avenues by which you could talk about your concern for resources? I mean appearances on television, you've got Twitter accounts, you've got, there are many different avenues as ombudsman that you have to express your concerns.

ALLAN ASHER: And have a look and you'll see that I've used them all too - the key speeches, publication of reports and all of those things.

But the appropriate way I thought of getting this to the attention of the Parliament, because I regard the Office of Ombudsman as being primarily accountable to the whole Parliament. And so I went to solicit and invitation to put these concerns to the Parliament Budget Committee which is the appropriate spot.

In past years that committee regularly met with the ombudsman. And over many years this issue has come up.

JULIA BAIRD: Well as we now know from news reports you then sent an email to Sarah Hanson-Young following your meeting. What did you write in that email?

ALLAN ASHER: Firstly I listed key areas of work that our office was involved in and said that I'd be really interested to be able to get to the Senate Budget Committee.

I see one of the key roles of the chief executive of an organisation is to secure an adequate level of funding for it. And I thought that would be a way of doing it.

JULIA BAIRD: Yes but there are a number of organisations or government departments that are competing for funding and when in May Sarah Hanson-Young used the email to ask you a series of questions in a Senate Estimates regarding funding and your questions about asylum seekers, how do you respond to the idea that this was just a blatant budget grab for your office?

ALLAN ASHER: That's true. It was an effort to show that we could not do the job that the Government had asked us to do with the level of resources that we had.

And could I contrast that with a number of other government agencies that have a similar level of independence, the Australian National Audit Office and the Commission for Law Enforcement Integrity?

Both of those agencies have a parliamentary committee which considers their budget in the context of the overall government budget. And in both cases in this last year they were able to get budget increases because they could show they were in very great difficulties.

We had nobody to whom we could make that appeal.

JULIA BAIRD: Yes and you've said that this was an unorthodox approach as a way of an ombudsman to secure more resources for his department. But wasn't it simply unethical to collude with a minor party to get more funding?

ALLAN ASHER: Well I don't know what you mean by colluding. A single meeting, I sent questions and she asked a few of them. I've not spoken to her since then either. So it's quite clear that there's a strong negative perception about that than I think exists.

JULIA BAIRD: You don't think in hindsight now people might have seen those emails as collusion?

ALLAN ASHER: Well clearly that's the way they're being described.

JULIA BAIRD: But have you ever scripted questions for other members of Parliament?

ALLAN ASHER: Well it's never been a relevant thing before. I've written letters and sent copies of papers and things.

In this case it was a shorthand way of highlighting what I thought were the critical issues that I wanted to ventilate at the committee.

JULIA BAIRD: Well how do you respond to those who would say that you were politically naive in doing so?

ALLAN ASHER: I think that the evidence shows that that's profoundly true.

JULIA BAIRD: You're listening to Sunday Profile with me, Julia Baird, and the man who has just resigned as Commonwealth ombudsman, Allan Asher.

Well these emails were then leaked and ended up in the hands of Labor Senator Trish Crossin who asked you to release all communication between your office and any senators or MPs and their offices.

Who leaked these emails?

ALLAN ASHER: Well we provided the copies at Senator Crossin's request to the Senate Committee.

However it's clear that a week before the committee even met to consider whether they would deal with the question and the answers - because they had to vote on whether they would release the other confidential, internal communications with the Minister's office.

But we were getting inquiries from journalist in Western Australia who clearly knew all about it. And this was at a time when as I understand it even the rest of the committee members didn't have it.

So, so far as I know the only people who knew about the questions and answers were the people in the offices of the ministers and the committee secretariat.

JULIA BAIRD: Do you have any evidence as to where the leak might have come from?

ALLAN ASHER: I don't have any evidence. I only know that the only people who had the information were ministerial offices and the secretariat of the Senate committee.

JULIA BAIRD: You're no longer the ombudsman. Can you speculate? Do you think this came from the Government?

ALLAN ASHER: It's my own feeling that it did, yes, although I couldn't say which office.

JULIA BAIRD: So after these leaked emails came to light you met with the Special Minister of State Gary Gray. What happened in that meeting?

ALLAN ASHER: Well I guess the context is first that I was called, with great irony, to the very Senate Budget Committee that I'd always been trying to get to. And they had their budget estimates hearing to consider these issues. And I was questioned at some length about that.

The following day I met with the head of the Department of Prime Minister and Cabinet and then the day after with Minister Gray.

I was already of the view that he would offer absolutely no support. And it was clear to me that the Office of the Ombudsman would continue to suffer unless I resigned. And so I did.

JULIA BAIRD: What did he say to you?

ALLAN ASHER: He made it clear that in relation to his responsibilities that I couldn't look for any support and there wasn't likely to be any basis for a continuing relationship. Not that there'd been much anyway because again he was a Minister who was very, very hard to get to see.

JULIA BAIRD: Allan Asher do you regret your actions?

ALLAN ASHER: I very much regret that I've had to resign and that so many of the things that I was very keen to do won't now be done.

But I have to say the point of crisis in funding, the point of poor governance of this office and the possibility now that at last there might be a reform of this dysfunctional mode of governance might make it worthwhile.

JULIA BAIRD: The Greens have said the events leading up to your exit amounted to a political assassination and a witch hunt. Do you agree?

ALLAN ASHER: Well I guess I wouldn't use those words. But I have to say I do feel that the treatment was very harsh and that, as I discover more and more about the premature disclosure to journalists of the answers that I'd sent to the Senate even before the Senate committee members knew of the question or the answers, I feel somewhat embittered about that.

And I guess I also feel embittered that my own lack of judgement on this issue has had such dramatic consequences.

JULIA BAIRD: Now that you're no longer the Commonwealth ombudsman, having your last day I believe was Friday, what do you want to say about the Government's asylum seeker policy that you've not been able to say before?

ALLAN ASHER: I say that it's been a very, very poor circumstance in the last year where the Government has been repeatedly in breach of its own immigration detention values - in the treatment of unaccompanied minors, in dealing with people who are some of the most vulnerable in society, poor mental healthcare, guaranteeing that any nascent mental illness was going to flare up.

And I think that's just a shameful circumstance administratively.

Policy-wise I actually think that the policy that we now have of onshore processing is probably a very positive thing.

It's just a tragedy that it's been so slow and grudging and a Government that seems to be just so riven by fear exhibiting a form of moral cowardice where individuals were not prepared to speak out in favour of Australia's formal policy for fear of either electoral or media backlash.

JULIA BAIRD: When you say that there are people who you came across within the Government who were afraid to speak up for the basic values which were actually laid out by the Government at the beginning of their term, why is that?

ALLAN ASHER: It's such an emotionally charged and politically charged issue. I mean that's self evident. And that really I guess from the time of the riots on Christmas Island in March where this thing, while it was a tinderbox issue on Christmas Island, it's also been a tinderbox issue in politics.

And I think the level of hatred and accusations and things like that have just meant that it's a subject about which rational discourse seems to be impossible. I have to say I've never experienced anything like that before in politics.

JULIA BAIRD: Well earlier this week a Sri Lankan refugee known as Shooty Vikadan took his own life in the Villawood Detention Centre which is the fourth suicide there in two years. Who should take responsibility for this man's death?

ALLAN ASHER: Well I'm really hoping that in this case the coroner will ask to see all of the records and ensure that all of the administrative processes that were supposed to be followed were.

JULIA BAIRD: There were reports that the case of this man was placed on your desk six days before he died. Why was nothing done about it in that time? Why wasn't he contacted?

ALLAN ASHER: Well we get, and I mentioned to you a while ago, there are 3,000 cases waiting for us to deal with of people who've been in detention for more than six months.

This was a case of two years. This is a statutory one. In the last month alone I've sent I would think a dozen reports of similar issues to the Minister and he must table those in Parliament. I'm expecting those to be tabled in Parliament at any time now. And I've set out in those concerns that I have.

JULIA BAIRD: Well this man was classified as a refugee two months ago but hadn't been cleared by ASIO. What should the Government be doing to make the security clearance process more streamlined so detainees aren't waiting years to be released into the community?

ALLAN ASHER: What some other countries do is just check firstly that people aren't on sort of an international terrorist watch list. And then if they're not while they do the assessment the people are actually in community detention with or without conditions attached.

Our system is even more punitive because if there's a security issue raised there is absolutely no right of appeal unlike everyone else where there's a merits review. And by the way in our system something like 75 per cent of adverse determinations by the department are overturned on review.

And yet in the security cases there are no reviews at all and the people aren't able to get visas.

JULIA BAIRD: Well Chris Bowen has said that he wants to see asylum seekers processed quickly. And in a press conference this week he announced that this year the Government has released more people into the community than they've placed in detention. So isn't that a sign of progress that sometimes get lost in these debates?

ALLAN ASHER: Oh it certainly is. And I've said already several times there are some really good things that have happened - moving unaccompanied minors onshore, the growth in community detention. And all of those are very positive.

But we still have a system which is very harsh and which is continuing to generate huge amounts of anxiety and mental illness unnecessarily.

Given that still the vast majority of people going through the system are eventually going to become Australian residents it is just doubly foolish that we subject them to this extreme form of stress for up to two more years and then they're released into society with lifelong conditions and mental illnesses. And our society is then confronted with a lifelong medical bill for that. And that just seems to me just absurd.

JULIA BAIRD: You said on Twitter last week, "Resigned not sacked and not sour at all but very determined to expose the inhumanity of the asylum system and fix it now."

Is this something you're going to continue doing?

ALLAN ASHER: It's something that now that I'm no longer employed by the ombudsman I feel free to deal both with policy matters as well as administration.

And I'll be seeking out all of those groups who have any interest in me working with them to expose what I see as poor administration and poor policy and to work to make systems better and actually restore what I believe to be Australia's traditional sense of fairness and humanity to a group who are being ostracised in our society.

JULIA BAIRD: Allan Asher, thanks for joining me on Sunday Profile.

ALLAN ASHER: It's been a great pleasure.

STATEMENT from the office of IMMIGRATION MINISTER CHRIS BOWEN

Sunday profile has contacted the immigration department about the issues that Allan Asher has raised.

In a statement Immigration Minister Chris Bowen says his office is naturally concerned to ensure that people in detention get appropriate health care including mental health care and that they are treated humanely.

In response to Allan Asher's comments about lack of resources to the ombudsman office, Minister Bowen says these claims are unfounded and ignore the facts.

The government is open and accountable about its immigration and detention centre policies and fully supports independent scrutiny by the immigration ombudsman and other organisations such as Australian Red cross

In relation to financial support the Government increased funding for the Ombudsman's office from 12.495 million dollars in 2005-06 to 22.472 million dollars in 2010-11, in part to help meet increased immigration-related responsibilities.

Full Statement from Minister Bowen's office:

On mental health/self harm:

This is a complex and challenging issue and of course the Government is concerned with the mental health of people in immigration detention.

The Immigration Department and the contracted health services provider ensure people in detention have appropriate access to mental health care, including mental health nurses, psychologists and psychiatrists.

Although mandatory detention is essential for health, identity and security checks, we want to see people in detention for as short a time as possible and to ensure they are treated humanely.

We recognise that some people in the detention network are particularly vulnerable, including children. That's why the Government has been moving people into community detention. The minister has granted almost 2200 people community detention places and there are currently 1165 people living in the community.

On Ombudsman access and resources claims:

These claims are unfounded and frankly ignore the facts.

This Government is open and accountable about its immigration detention system and supports - through complete access and funding - independent scrutiny by the Immigration Ombudsman, the Australian Human Rights Commission and the Australian Red Cross.

We always welcome constructive criticism, as is evidenced in our responses to the Commonwealthh Ombudsman's and other independent reports, and the work done to implement recommendations.

These have contributed to improved processing of asylum claims, streamlined security clearances and a reduction in the number of people across the detention network.

On the issue of financial support, the Government increased funding for the Ombudsman's office from 12.495 million dollars in 2005-06 to 22.472 million dollars in 2010-11, in part to help meet increased immigration-related responsibilities.